The Liberals campaigned on a promise to fix the “problematic” aspects of Bill C-51 – which passed into law as the Anti-Terrorism Act, 2015 last year – but have yet to close the deal. As the Oct. 22 two-year anniversary of the tragic shooting of Cpl. Nathan Cirillo looms, concerns regarding the act, and accountability, remain.

The government’s recently released Green Paper, “Our Security, Our Rights,” forms the basis for public consultations on Canada’s national security framework but does not assuage concerns about the anti-terrorism act. Bill C-22 was also introduced this year to create a parliamentary committee to review national security activities and intelligence in order to fill the Canada’s current gap of no parliamentary oversight of national security. But it doesn’t go far enough. As such, the potential for rights and accountability failures, and errors, persists and Canada is not safer.

The anti-terrorism act included new and secret powers for the Canadian Security Intelligence Service (CSIS) and rampant information-sharing among 17 agencies and more than 100 departments. These and other concerns about the act are exacerbated by accountability failures. The Canadian Civil Liberties Association and others brought a constitutional challenge of the act in July 2015, but the case is on hold pending the government’s next steps.

CCLA, however, continues to be concerned about national security accountability gaps. For example, under Bill C-51, CSIS has new and novel powers but there are no new commensurate accountability structures. The act introduced new CSIS warrants which can be obtained in secret, without adversarial process, and which compromise judicial independence. And, unlike traditional warrants which ensure compliance with the Canadian Charter of Rights and Freedoms, these warrants pre-authorize violations.

Although the government has said CSIS will comply with the Charter, the Green Paper does not indicate how this will be done, and does not commit to amending the CSIS warrant provisions. Given CSIS officials’ errors relating to the cases of Maher Arar, Omar Khadr and the Air India bombing, properly resourced and empowered accountability structures for CSIS – and the Canadian Security Establishment (CSE), Canada’s electronic spy agency – are vital. Accountability mechanisms, currently siloed, must be integrated to properly review integrated activity among Canada’s national security agencies.

The anti-terrorism act introduced new and increased information-sharing schemes which wholly fail to heed the lessons of the Arar Federal Commission of Inquiry. This is alarming; once information is shared with foreign officials, Canada loses all control over it use. And many of the Canadian agencies that share information– such as the Canadian Border Services Agency – have no accountability mechanisms.

While Bill C-22 seeks to establish a parliamentary committee to review national security activity and intelligence, the government can withhold any information from the committee, rendering the process ineffectual and out of step with the parliamentary accountability processes of our allies, such as the United Kingdom. Also absent are lessons regarding intelligence and evidence outlined by the Air India Federal Commission of Inquiry.

Finally the Green Paper seems to re-open the question of “lawful access” to Canadians’ privacy on the internet – a matter that had been put to rest by the Supreme Court of Canada when the court ruled against such access, finding a legitimate privacy interest in Internet Use.

The act also reversed due process protections in suspected terrorism deportation cases, removing the government’s obligation to disclose intelligence to security-cleared lawyers. This is contrary to the Charter protections of liberty and security of person – which cannot be deprived except in accordance with the principles of fundamental justice – which the Supreme Court maintained must be upheld in terrorism cases.

So our government still has a long way to go on its promise, and on delivering accountability. Rights, liberties, constitutional protections and accountability are not dispensable luxuries in a constitutional democracy such as Canada, but rather, are prerequisites for real security.

Sukanya Pillay is Executive Director and General Counsel of the Canadian Civil Liberties Association.

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